R v Nl

[2011] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v NL [2011] QCA 113

PARTIES:

R
v
NL
(applicant/appellant)

FILE NO/S:

CA No 256 of 2010
DC No 63 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application (Extension Granted)

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

3 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2011

JUDGES:

Fraser and Chesterman JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application for leave to appeal against sentence is allowed.

2.    The appeal is allowed.

3.    The sentence imposed in the District Court on 6 September 2010 is varied by:

a.  Reducing the term of imprisonment of four and a half years imposed on the count of stalking to three years;

b.  Setting aside the order that the term of imprisonment of six months imposed on the count of dangerous operation of a vehicle be served cumulatively upon the sentence for the count of stalking, and instead ordering that the sentence be served concurrently;

c.  Setting aside the order fixing the appellant’s parole eligibility date at 22 October 2011 and instead ordering that the term of imprisonment of four years imposed on the count of arson, and the term of imprisonment of three years imposed on the count of stalking, be suspended after serving one year, four months and fifteen days for an operational period of four and a half years.

4.    The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty and was sentenced for offences of stalking, dangerous driving, burglary, arson, breach of bail and breach of release conditions – where the sentence for dangerous driving was ordered to be served cumulatively – where the applicant argued that the sentencing judge erred by not giving reasons for the order of cumulative imprisonment and that there was no basis for such an order to be made – whether the sentencing judge failed to give reasons – whether an order for cumulative imprisonment was within the sentencing judge’s discretion

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to four years imprisonment for the arson offence, four and a half years imprisonment for the stalking offence and six months imprisonment for the dangerous driving offence – where the effective sentence was five years and two months imprisonment with parole eligibility after 20 months – where the stalking offence took place over a period of 24 hours following the breakdown of a long term relationship and where the applicant was attempting to obtain funds to return to his family interstate – where the applicant argued the sentencing judge gave no or insufficient weight to mitigating features – whether the sentence imposed was manifestly excessive

Bail Act 1980 (Qld), s 33
Penalties and Sentences Act 1992 (Qld), s 148, s 155, s 156A

Gordon & Camp v Whybrow[1998] QCA 52, applied
R v Ball [2001] QCA 201, cited
R v Johnson [2005] QCA 265, cited
R v Johnson (2007) 173 A Crim R 94; [2007] QCA 249, cited
R v Liddle[2006] QCA 45, cited

COUNSEL:

F Richards for the applicant/appellant
R W Griffith for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      FRASER JA: The applicant applied for leave to appeal against his conviction and sentence imposed on 6 September 2010 for offences of stalking, dangerous driving, burglary, arson, breach of bail and breach of release conditions.  He has since abandoned the proposed appeal against conviction.

[2]      The applicant pleaded guilty and was sentenced to four and a half years imprisonment for the stalking offence, six months imprisonment for the dangerous driving offence to be served cumulatively upon the stalking offence, a two month cumulative term for the breach of bail offence, and concurrent terms of four years imprisonment for the arson, 18 months imprisonment for the burglary, and two months imprisonment for the breach of release conditions.  The sentencing judge declared that a period of 195 days which the applicant had served in pre-sentence custody was time already served under the sentence and fixed the date upon which the applicant will be eligible for release on parole as 22 October 2011.  The effective sentence was five years and two months imprisonment with a parole eligibility date after 20 months, that is, after the applicant had served less than one third of the overall sentence of imprisonment.

[3]      The applicant contends that the sentencing judge gave no reasons, and no sufficient reason existed, for ordering that the six months imprisonment for dangerous driving be cumulative upon the four and a half years imprisonment for the stalking offence.  He also contends that his sentence was manifestly excessive having regard to the “totality principle” and factors favourable to the applicant. 

Circumstances of the offences

[4]      The applicant committed the four indictable offences on 10 February 2009.  The applicant had been living in an “on and off” relationship with the then 20 year old complainant for many years at the time of the offences.  According to the schedule of facts tendered at the sentence hearing, the complainant and the applicant argued on the day before the offence and the complainant reported to police that the applicant had assaulted her.  The complainant applied for a domestic violence order.  The applicant was released from the police watch-house upon conditions explained to him and contained in a document which he signed, including that he not enter any place where the complainant was living and not go to any place where the complainant worked.  After the applicant had attended with police and collected his personal belongings and car from the unit where the complainant resided, he returned alone an hour later and told the complainant that he had come to get revenge on her.  The complainant called the police and the applicant left when he saw them arriving a few minutes later.  About an hour later the applicant returned and entered the unit by climbing through a window.  He restrained the complainant from using the phone and prevented her from leaving her bedroom.  The complainant then allowed the applicant to stay in the unit during the night.  On the following morning, when the complainant refused the applicant’s request for money, the applicant seized a knife and cut up some of the complainant’s clothing.  When the complainant yelled at him to stop he grabbed her by the mouth and threw her to the ground, sat on top of her, and threatened to punch her.  The applicant desisted in this conduct only after the complainant’s cousin arrived at the unit.

[5]      Shortly afterwards, whilst the complainant was driving with her cousin and a friend to collect her pay from her workplace, the applicant followed them in his car and abused the complainant.  The applicant followed the complainant to the house of her friend’s brother.  When the cars stopped, the applicant ran towards the complainant, tried to open the car doors, and yelled abuse.  The applicant left when other people came out of a nearby house.  Later in the same day, as the complainant was walking away from her workplace with a friend, the applicant grabbed the complainant and dragged her, lifting her off the ground.  The complainant was unable to struggle free at first but her friend intervened.  The applicant ran away. 

[6]      At about 9.00 pm on the same day the complainant’s brother and cousin were walking along a lane when the applicant shouted at them.  When they approached him he drove off but he returned, driving his car towards them at speed.  They dived behind a parked car.  The applicant accelerated before swerving at the last minute to avoid striking the parked car.  Defence counsel submitted, without contradiction, that at no point was the applicant’s car closer than 15 metres to them.

[7]      At about 9.30 pm that same night the Queensland Fire and Rescue Service was called to the Queensland Government Department of Housing unit in which the complainant resided following reports that it had been set alight.  A bedroom of the unit was engulfed in fire and the Fire and Rescue Service officers were required to extinguish that fire.  Entry to the unit had been gained by the removal of an air conditioner board and an accelerant had been used in the fire.  No one was in the unit or the adjoining unit at the time.  Extensive damage was caused to the bedroom from smoke and flame and there was smoke damage to the remainder of the unit.  The costs of repairs were quantified at over $22,000 and there was a further cost of around $3,000 to replace the uninsured contents of the unit.  When the applicant was located by police later the same evening they found a large red jerry-can in his car. 

[8]      In a police interview the applicant acknowledged that he understood the conditions upon which he had been earlier released and knew that he was not to go back to the complainant’s address.  He initially denied going back to the unit but later admitted that he returned to try to talk to the complainant.  He admitted that he had followed her in a car, approached her in the alleyway and dragged her some distance.  The applicant denied that he had gained entry to the unit by climbing through the window, cutting up the complainant’s clothes and assaulting her.  He also denied that he had driven dangerously.  The applicant denied that he had started the fire or gone anywhere near the unit for that purpose, although he did admit to being parked nearby.  The applicant told police that he would have petrol all over his clothes due to spilling some petrol on himself earlier in the evening. 

[9]      The applicant committed the breach of bail offence by going to Western Australia and staying at large for four months after he had been charged and bailed on the other offences.

The applicant’s personal circumstances

1. The applicant was 21 years of age when he committed the indictable offences and he was 22 years old when he was sentenced.  He had no previous convictions, was qualified in various forms of employment, and had the support of his family in Western Australia.  The applicant had a good employment history until the twelve month period leading up to the offences.  In that period the applicant was without work and found it frustrating to rely upon the complainant for support beyond the dole.  There had been instability in the applicant’s early home life, he had been diagnosed with attention deficit disorder as a child, and he suffered from a disability in that he had lost an eye.

Sentencing remarks

1. The sentencing judge described the indictable offences as being “acts of revenge” by the applicant against his girlfriend.  In relation to the arson offence her Honour noted that the unit was made of brick but the fence that connected the unit with the neighbour’s yard was made of wood.  The sentencing judge concluded that the applicant’s conduct had endangered the safety of other people.  In relation to the dangerous driving offence the sentencing judge concluded that the applicant used his car as a weapon to terrify the two men.

1. The sentencing judge took into account that the applicant had pleaded guilty but considered that the pleas reflected the strong evidence against him rather than an indication of genuine remorse.  The sentencing judge gave the applicant credit for “sparing the public purse and saving the complainant the ordeal of a trial.”  Her Honour also took into account that the applicant was still only aged 22, that he had no previous convictions, and that he had been working since he was 14 or 15.  The sentencing judge observed that the period of imprisonment must be tempered by the applicant’s youth and the absence of criminal history.  Her Honour noted that the applicant had moved around with some instability in his home life and had been diagnosed with attention deficit disorder as a child.  The sentencing judge also took into account that in recent times the applicant had been without work and found it frustrating to rely upon his former partner for support.  The applicant’s former partner controlled their joint funds and the applicant was angry about having been evicted from his home and being required to sleep in his car.  The sentencing judge also noted that the applicant wished to return to his family interstate. 

1. I will advert to further remarks made by the sentencing judge in the course of considering the applicant’s contentions in this Court.

Cumulative sentences

1. Terms of imprisonment are to run concurrently unless otherwise ordered by the sentencing court or provided for by the Penalties and Sentences Act 1992 (Qld).[1]  It is not in issue that the two month term of imprisonment for breach of bail was necessarily imposed as a cumulative sentence, but otherwise the terms of imprisonment were to run concurrently unless otherwise ordered. [2]

   [1]Penalties and Sentences Act 1992 (Qld), s 155.

   [2]Bail Act 1980 (Qld), s 33; Penalties and Sentences Act 1992 (Qld), ss 148, 156A.

1. The applicant argued that the sentencing judge erred in principle by not giving reasons for imposing cumulative imprisonment and that the sentence for the offence of dangerous operation of a motor vehicle should not have been made cumulative upon the sentence imposed for the stalking offence.  The applicant particularly emphasised the submission that although the offending was abhorrent behaviour, it occurred in the context of the breakdown of a long term relationship and mostly occurred within a relatively short period of about 24 hours.

1. In Gordon & Camp v Whybrow,[3] Fitzgerald P and Davies JA held that the failure of the Magistrates Court and the District Court to make any reference to the statutory provisions which were material in that case, or to explain why, despite those provisions, cumulative sentences were appropriate, constituted an error of principle.  It was not merely the omission of any reference to the relevant statutory provisions that constituted the error.  Reference to the statute is useful as a reminder that cumulative sentences are the exception rather than the rule, but it is not essential.  The critical requirement is that the sentencing remarks sufficiently explain why an order for cumulative sentences is appropriate in the particular case,[4] at least where the reason is not self-evident.[5]  

   [3][1998] QCA 52 at p 9.

   [4]See R v Liddle [2006] QCA 45 at [23], per Williams, Jerrard, and Keane JJA.

   [5]See Gordon & Camp v Whybrow [1998] QCA 52 at p 12 per Fryberg J.

1. The sentencing judge noted that the offences were committed in the course of a single day and that the applicant had told his counsel that he was frustrated and angry because, following the breakdown of the relationship, the complainant controlled their joint funds, he had been evicted from his home and was required to sleep in a car, and the complainant would not give him any money.  The sentencing judge found, however, that the series of offences went well beyond an act of financial desperation, they were not the result of a sudden “rush of blood to the head”, but were “drawn out and in persistent defiance of your release conditions to stay away from [the complainant]”.  Her Honour characterised the applicant’s dangerous driving as “recklessly dangerous conduct” and likened his use of the car to the use of “a weapon to terrify”.  Her Honour also observed that the offences were “calculated, determined and cruel” and the dangerous driving and arson offences in particular were recklessly dangerous.  The sentencing judge concluded that the appropriate sentence should “reflect the totality of what you did”.  Having determined that the total effective sentence was one of five years and two months imprisonment, the sentencing judge imposed the separate sentences which, together with the order for cumulative sentences, constituted that overall effective sentence.

1. Those reasons did sufficiently explain why the sentencing judge considered that it was appropriate to impose cumulative sentences.

1. It is very common for concurrent sentences to be imposed for a series of offences committed over such a short period, but it was within the discretion of the sentencing judge to order some cumulative imprisonment.  That was justifiable in light of: the escalation in the seriousness of the applicant’s offences; the differences in character between the arson offence and the other offences; the number of offences committed by the applicant; the applicant’s persistence in offending despite the repeated intervention of police; and the fact that the dangerous driving offence affected victims other than the complainant in the stalking offence.  The sentencing judge might instead have taken into account the overall criminality of the offending in a sentence for the most serious offence, with concurrent, lesser terms of imprisonment for the other offences, but the sentencing structure chosen by her Honour does not of itself reveal any error of principle.  It is a different question, however, whether the resulting overall sentence was manifestly excessive.

Manifestly excessive

1. The applicant argued that the sentencing judge gave no or insufficient weight to matters favourable to the applicant.  The argument that no weight was given to those matters is unsustainable.  The sentencing judge expressly took into account all of the matters mentioned in defence counsel’s submissions, save the fact that the applicant had lost an eye.  However defence counsel had noted that the injury was visible and it is not likely that the sentencing judge overlooked it.  In any event this would not bear significantly upon the sentence.  Nor did the sentencing judge overlook the mitigating effect of the applicant’s pleas of guilty, although her Honour found (and the finding was not challenged) that the pleas reflected more the strong evidence against the applicant than any sign of genuine remorse.  The sentencing judge included an allowance in the sentence, particularly by the early parole eligibility date, for the effect of the pleas of guilty in sparing the public purse and saving the complainant the ordeal of a trial, as well as for the other mitigating circumstances.

1. However, I have concluded that the overall effective sentence was manifestly excessive in the particular circumstances of this case.  Having regard to the substantial damage caused by the fire and the possible risks to occupants of neighbouring properties, and potentially to fire fighters, the sentence of four years imprisonment for the arson offence was within the sentencing discretion,[6] although it was at the high end of the range of sentences in the circumstances of this case.  We were not referred to any truly comparable sentence for the stalking offence, but in my respectful opinion the sentence of four and a half years imprisonment was too heavy.  This was not a protracted stalking offence.  Although the offences were serious and persisted in despite the repeated intervention of police, they occurred over one period of no more than about 24 hours and as a reaction (albeit a gross overreaction) to the breakdown of a long term relationship, and where the applicant was apparently keen to obtain funds so that he could return to his family interstate.  That by no means excuses the offences, but it does distinguish the case from those stalking offences where an offender importunately pursues a former partner for a protracted period.

   [6]See R v Ball [2001] QCA 201; R v Johnson (2007) 173 A Crim R 94; [2007] QCA 249; and R v Johnson [2005] QCA 265.

1. There were also strong grounds for making the sentences concurrent, apart from the necessarily cumulative sentence for breach of bail.  Importantly, in addition to the relatively short period during which all of the indictable offences were committed, the applicant did not cause serious physical injury to any of the victims of his offences.  The applicant’s employment record, absence of criminal history, and supportive family also encouraged a favourable view of his prospects of a full and early rehabilitation.

1. It is therefore necessary for this Court to sentence the applicant afresh.[7]  The appropriate effective sentence, reflecting the totality of the applicant’s criminality in his offending, is four years and two months imprisonment, with suspension after one third of that period.

   [7]Criminal Code 1899 (Qld), s 668E(3).

Proposed order

1. In my opinion the appropriate orders are:

1.   The application for leave to appeal against sentence is allowed.

2.   The appeal is allowed.

3.   The sentence imposed in the District Court on 6 September 2010 is varied by:

a.   Reducing the term of imprisonment of four and a half years imposed on the count of stalking to three years;

b.   Setting aside the order that the term of imprisonment of six months imposed on the count of dangerous operation of a vehicle be served cumulatively upon the sentence for the count of stalking, and instead ordering that the sentence be served concurrently;

c.   Setting aside the order fixing the appellant’s parole eligibility date at 22 October 2011 and instead ordering that the term of imprisonment of four years imposed on the count of arson, and the term of imprisonment of three years imposed on the count of stalking, be suspended after serving one year, four months and fifteen days for an operational period of four and a half years.

4.   The sentence imposed at first instance is otherwise confirmed.

1. CHESTERMAN JA:  I agree with the orders proposed by Fraser JA, for the reasons given by his Honour.

1. CULLINANE J: I have read the reasons of Fraser JA in this matter and agree with those reasons and the orders proposed.